Anonymity for rape defendants

Maura McGowan QC is the chairwoman of the Bar Council and she has recently suggested that men accused of rape should receive anonymity.

While we talk of men being convicted of rape it's worth noting that women can be convicted of it as well and it happens once in a blue-moon. Only a man can be the principle offender, but a woman can be guilty of rape through joint enterprise or in a more limited way by aiding, abetting, counselling or procuring the offence.

While we talk of women being the victims of rape, men can also be raped. As can children of both sexes. The rape of an adult man is relatively rare. I don't have figures for the numbers of male/female children raped each year but when I used to defend those offences the numbers I come across were roughly even.

Why are rape victims given anonymity?

Rape occupies a unique position in our law whereby the complainant is automatically granted anonymity for life and that anonymity can only be lifted by order of a court. Typically it is lifted at the request of the victim but on rare occasions it is lifted because the allegation has been found to be false and the complainant convicted of perverting the course of justice. It is not lifted simply because the defendant is acquitted.

When I was about 14 two fully grown adult men tried to rob me. Last year somebody managed to steal my iPhone. Both events were annoying but ultimately neither troubled me. Rape; however, is a very traumatic experience. Victims should not feel ashamed or that what happened was their fault, but I understand both feelings are common. This makes it less likely that the victim of a rape will come forward.

Guaranteeing anonymity helps reassure victims that they can come forward and tell the police what happened to them without finding their name or photograph appearing in the press. The defence will be aware of the complainant's name so no unfairness is caused to the defence in preparing their case for trial. So, there really is no downside to granting victims anonymity.

Anonymity for the defendant

Ever since I first studied law when I was 16 I have felt that all defendants should be granted anonymity until they have been convicted. If a person is innocent until proven guilty then this makes sense.

In sexual offence cases there is a much stronger reason for anonymity than in cases involving other offences. Those wrongly accused often report that the stigma caused by the allegation simply never goes away. It infects not only the innocent defendant but also their family and close friends. Many reports detail being shunned by friends, family and employers. They frequently move home to escape the problems caused by the accusation even after they have been found not guilty. I seriously doubt that this happens to even those who are actually guilty of other offences, like theft. Antony Worrall Thompson actually went on TV several times to talk about his pilfering ways.

There are a whole host of reasons given against the granting of anonymity for defendants in rape cases. A recent piece in the Guardian gave these reasons:

Publication in the press traps serial rapists by making other victims more likely to come forward;

Being accused of rape is no worse than being accused of murder or terrorism.

I will deal with each of these in turn if I may. First, it does not appear to be the case that publication makes genuine complaints more likely. John Leslie was accused by Matthew Wright of raping Ulrika Jonnson, a claim she refused to confirm or deny. Within months he had been accused by over 30 women of the same offence. The vast majority never went to the police but went direct to the press. The police and prosecution were unable to find sufficient evidence to put Leslie on trial for any offence whatsoever! Compare that to the the Jimmy Savile case; lots of people came forward after his death but the real problem appears to have been complaints made to the police and authorities not being properly investigated or taken seriously. In the John Worboys case the problem was again a botched police investigation. In any event, it is very easy to draft a law that grants anonymity but allows a judge or magistrate to lift that anonymity in situations where the police say it is necessary. The argument that anonymity prevents further victims being found really has no legs.

The fact that rape is stigmatising on the victim really has nothing to do with whether the defendant should also receive anonymity. It is stigmatising to be accused of sexual offences so if anything this claim strengthens the need for defendants to receive anonymity.

Apart from not being true that barristers in rape cases have free reign to tarnish a complainants character it's also worth mentioning that this objection has nothing to do with whether a defendant should receive anonymity. While I am on the subject though, I do find it very worrying that the Guardian's report say "'belief in consent' is a permissible defence" in a way that suggests merely believing that the other person consented should never be a defence to sexual offences. For those who don't know, it is only the lack of consent that renders the sexual act a criminal offence. If the defendant were to be deprived of the right to say, "I thought she consented" that is tantamount to saying that an allegation is equivalent to guilt because there is no defence left (apart from, "it didn't happen") to the defendant.

Finally, I do take issue with the claim that an accusation of rape is no worse than an accusation of murder or terrorism. There is something particularly nasty about sexual offenders, not just in reality but also in the minds of people. To be honest, if a friend of mine got into a drunken fight and murdered somebody I had never met then I think that our friendship would probably be more or less unaffected by the conviction. If the same friend got drunk and raped a woman I had never met then I think it would have a big impact on our relationship. In any event, I would suggest that this strengthens my earlier point that I am in favour of anonymity for all defendants not just those accused of sexual offences.

In conclusion, I would quite like to see anonymity for all defendants. However, I do think that those accused of sexual offences should be given this protection even if other defendants are not. After conviction there should be nothing to prevent the press reporting, naming and shaming those who have been found guilty.

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Comments

There is no justification for special measures or anonymity in any trial on any criminal charge. The proceedings must be open to the public and the public should know who is on trial and the accused must have the right to face his or her accuser(s) and any supporting witnesses.

Yes, I do as it happens, and witness intimidation is not a justification for anonymity. If you think it is, then you need to explain why. And please do so without engaging in sarcasm and cheap, childish put-downs. At least then we might have an inkling of whether you know what you are talking about.

I will spell it out, since you evidently need that. In exceptional circumstances, defendants will abuse the right to face their accusers by finding where they live and threatening their lives, or otherwise interfering with the administration of justice. See example.

Then it would be more helpful if you could have responded to my original comment constructively and politely rather than giving in to the urge to act like a sneery little Know-It-All. Please look back at your original comment and think about that.

Now, let's turn to your point. What you refer to is a very extreme type of witness intimidation that is rare, so presumably you can find easily find for us an actual, referenced example where a judge has deemed that a witness whose identity is not known to the defendant must have their identity concealed? That would be helpful. A real example from the UK, please.

Just to be clear, I have no doubt that there are such risks, but I maintain it does not justify anonymity for the witness. An accused has the right to face his accusers and question witnesses, and proceedings should be conducted openly. I maintain that the risk you have highlighted does not justify these special measures, which in almost-all cases are an alarmist overreaction.

It baffles me why, after you claimed to know what witness intimidation is, you required an explanation. It's Ok to not know things. Saying you do when you don't just makes you look foolish.

You seem to be under the assumption that judges will grant any special witness measures lightly. You can rest assured they will not. And while your "principled" courage on behalf of others is commendable, what is much more likely is that the witnesses would refuse to give evidence. Difficult to see how that is in the interest of justice. Do you have a justification?

Also, I think you are confused about what "anonymity" means here: it means the press are forbidden from reporting the relevant persons' identities.

I do not understand your hostility or why you are misrepresenting me. Would you care to explain?

I have manifestly not asked you for a definition of witness intimidation. I am asking you to provide an example of such to advance your argument, which you have conspicuously not provided.

I would just like to add that I am a solicitor myself, so I do not need to be lectured or condescended to by you. I know the meaning of the terms - anonymity, etc. - in this context. I simply expressed an opinion and you have jumped all over me.

Why?

I do not assume that special measures, etc., are granted lightly, but I do think they are granted more easily than they should be and I do consider this to be a disturbing movement in the criminal justice system. And I have explained why I do not like it.

And while we're on the subject, yes I do think that if a victim or witness is unwilling to be publicly identified or identified in court as the case may be, then in almost-all such cases the evidence should not be heard, and if that means the prosecution cannot proceed or must fail, then so be it. And yes, I do think that is in the interests of justice.

Furthermore, I also maintain my view that all defendants and victims should be publicly identified. This includes complainants in rape cases. If the complainant is not willing to be named, then the prosecution should not proceed. I can see no justification for permitting anonymity of either the accused or complainant in rape cases. I believe anonymity encourages false allegations and undermines justice.

"Also, I think you are confused about what "anonymity" means here: it means the press are forbidden from reporting the relevant persons' identities."

I cannot see what you are getting at here. Surely 'anonymity' in this context potentially refers to a range of things. It could mean the witness's identity is concealed from the accused or it could mean merely that the identity of the witness is not to be reported on in the media.

My contention is that these protection measures should never be allowed. They attack the very basis of the system itself and could encourage false allegations, and they are also the type of measures that could be dangerously 'normalised' and may become common, despite their insidious nature, as the judges, lawyers and the public get used to it. Indeed, I would suggest your own contributions here are an example of how an organised attack on precepts of justice can be 'normalised' and become accepted as if it is quite routine and ordinary.

Well, we are not just talking about organised crime, are we. We are also referring here to cases involving allegations of rape, etc., and certainly in those cases, I cannot see the justification for special measures and reporting restrictions and I think the adoption of these measures is for political rather than what might be considered 'genuine' juridical reasons.

I sympathise with anyone who is the victim of rape, but if they cannot find the strength and courage to give evidence in the open, then the prosecution should not proceed. I think it is insidious to allow anonymity for either the complainant or accused due to the heightened risk that false or untrue allegations might be pursued.

But you are right to highlight the issue of organised crime and I do accept that is the weak point in my argument here. The practicalities lend themselves to your side of the argument, so I am not against the idea of witness protection, as such, in appropriate cases of organised crime and terrorism, where it makes sense, but the identity of the witness must at all times be known. I think there are measures that can accommodate the physical and evidential risks without resorting to the dubious measure of witness concealment or anonymity. There are other ways and means to protect witnesses (including victims).

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